Limitations to the right of freedom of speech and expression

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Introduction
Lisa: I posted my opinion online which is completely justified. I have been granted this right by the
Constitution itself. This is my freedom of speech and expression.

Police Officer: Your freedom of speech and expression is not absolute. What you posted online is
seditious. We have a right to detain you.

Article 19(1)(a) of the Indian Constitution guarantees to all citizens, the right to freedom of speech and
expression. The Preamble to the Indian Constitution also provides to its citizens, the liberty of thought
and expression. However, this right is not an absolute one and Article 19(2) lists down the restrictions that
can be imposed on the exercise of this right.

The freedom of speech and expression has been granted universal acknowledgment and has been
understood to be of fundamental importance for democratic systems. Article 19 of the Universal
Declaration of Human Rights (UDHR) also says that everyone has the right to freedom of opinion and
expression. Besides, Article 19(2) of the International Covenant on Civil and Political Rights grants
everyone the right to freedom of speech and expression. India has also ratified these international
declarations and hence holds high regard for this essential freedom of its citizens.

This article will discuss the importance and need of the freedom of speech and expression in a
democracy and look at some of its facets. To look at the scope of this right, the various laws that restrict it
will also be studied to protect the State’s security

Importance and need of freedom of speech and expression

The importance and need of the freedom of speech and expression can be understood from the
following:

1. In a democracy, the freedom of speech and expression is one of the prime liberties granted to the
citizens. It forms a foundation for other rights granted to citizens, such as the freedom of the press.
Freedom of the press, in turn, helps in inculcating a better-informed public and electorate.
2. It ensures that citizens can express their opinions freely and also hold their political leaders
accountable. Also, this freedom ensures that important information is legally shared and circulated
among citizens.
3. It also provides a platform to make the marginalized and minority voices heard. Issues that concern
these groups can be highlighted and brought to the forefront by using the right to freedom of speech
and expression.
4. The freedom of speech and expression protects the creative license of artists and allows them to
develop and share ideas freely. These can be academic writings, satirical work, theatre, cartoons,
visual arts, and stand-up comedies.

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Sedition vs. right to free speech and expression
Section 124A of the Indian Penal Code penalizes anyone who by words, either spoken or written or by
visible representation or by otherwise attempts to bring disaffection, hatred, or contempt against the
government established by law. The colonial-era law of sedition has been widely criticized for serving as
a restriction on free speech and expression. Even though the explanations to the section make it clear
that only attempts to excite hatred, contempt, or disaffection lead to sedition and lawful criticism with a
view of obtaining change does not amount to sedition, the law has been widely abused. For an act to
amount to sedition, there must be an intention to cause public disorder or disturbance and hinder public
peace. The Supreme Court in the case of Kedarnath Singh v. State of Bihar put a limit on the scope of
Section 124A, whereby only the individuals using free speech and expression to incite violence and
disrupt the law can be penalized. In the case of Shreya Singhal v. Union of India, the court emphasized
that there has to be a degree of proximity between the words spoken or expressed and the public
disorder that takes place. However, in reality, there has been a continued trend where charges of sedition
have been pressed against individuals for criticizing the government. Due to this abuse of the law,
demands have been made to abolish the Section to protect the sanctity of free speech and expression.

Recently in a petition against the sedition case filed against the Senior journalist, Vinod Dua, Vinod Dua v.
Union of India, the Supreme Court upheld his journalistic freedom and said that every journalist is entitled
to protection and the sedition law has to be applied as provided in the Kedarnath judgment. A BJP leader
in Himachal Pradesh had filed an FIR against Vinod Dua for criticising the Prime Minister and the Union
government on his Youtube channel. The court quashed the FIR.

Hate speech and the freedom of speech and expression

Hate speech poses a challenge to the right to freedom of speech and expression. In contemporary times,
it is often used as a tool to gain popularity. It manifests itself into a form that creates divisions in society by
attempting to belittle specific groups of people based on their religion, culture, ethnicity, race, gender,
sexual orientation, disability, language, occupation, ideology, appearance, etc. It runs contrary to the
objective of the fundamental right to free speech and expression that is to liberate people from all strata
of society. Hate speech often relies on and perpetuates stereotypes. Hate speech has been seen to be
used post-elections to cause anti-minority incitement and is often related to the politics of violence and
hatred.

The Constitution of India by law seeks to prevent the delivery of hate speech under the garb of free
speech and expression. It prohibits expressions that can be insulting to others. According to Article 51A
(h) of the Indian Constitution, citizens must develop scientific temper, humanism, and the spirit of inquiry
and reform. Various criminal laws in India also penalize hate speech. In the case of Dr Das Rao
Deshmukh v. Kamal Kishore Nanasaheb Kadam, the appellant sought votes by using a poster that said:
“teach a lesson to Muslims”. The Supreme Court held that the poster cannot be justified as it threatens to
arouse communal feelings and create disharmony between the communities. It was offensive and went
against the secular structure of the country.

Facets of free speech

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Freedom of press
The freedom of speech and expression as under Article 19 also includes the freedom of the press. During
the Constituent Assembly Debates, Damodar S. Seth argued that freedom of the press should be
explicitly included in the Article due to the present age where the press holds immense value. However, it
was decided that a separate provision for the same is not required.

Right to Silence
The citizens’ right to stay silent has also been considered a part of the right to freedom of speech and
expression. In the case of Bijoe Emmanuel & Ors. v. the State of Kerala, the court upheld the petitioner’s
right to stay silent during the national anthem.

Right to report and broadcast

Under the freedom of speech and expression, citizens possess the right to circulate and publish content.
It also includes the right to broadcast information. They also have the right to report proceedings of a
court of law, this also ensures transparency.

The right to be informed

A citizen’s right to know, receive, and impart information as a part of their right to information has also
been recognized as a part of the freedom of speech and expression. In the judgment of the Union of India
v. the Association of Democratic Reforms, the court held that the voters’ have the right to know about
candidates.

Limits to freedom of speech and expression

The right to freedom of speech and expression is not absolute and has been reasonably restricted by the
Constitution of India under Article 19(2). The grounds for imposing these restrictions are:

Sovereignty and Integrity of India

India gained its sovereignty after 200 years of colonial rule and established itself as an independent state
wholly responsible for its internal affairs. Hence, citizens have been restricted to make statements that
can harm this hard-earned sovereignty and hurt the integrity of the nation. This ground was added in
1963 through the Constitution (Sixteenth Amendment) Act to impose restrictions on individuals or groups
that were instigating secessionist movements in the country.

Security of the State

The government has the right to deny the freedom of speech and expression to protect the security of the
State. However, the threats against security must be an aggravated threat to public order, such as
rebellion, insurrection, waging war against the State, etc.

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To maintain friendly relations with foreign states
In a globalized world with unequal power relations, maintaining positive relations with neighbouring
countries and other countries is significant. Hence, if a person’s freedom of speech and expression
threatens to hinder these relations or harms the country’s international relations, it can be restricted. This
is essential to curb malicious actions by some to jeopardize the reputation of the country.

Decency and Morality

One’s speech and expression must be decent and moral. It should not go against the morals of
contemporary society. Restrictions on freedom of speech and expression imposed in the interest of
decency and morality can be found in Section 292 to Section 294 of the Indian Penal Code, they deal
with content that is deemed to be obscene. However, it must be noted that standards of decency and
morality evolve and change along with society and are not static. The Hicklin test which originated in
England is one of the tests to determine the decency or morality of a publication by checking its effect on
the most vulnerable members of society.

Contempt of Court
The judiciary holds great value in a democracy and hence to maintain its stature and preserve public trust
in the institution, free speech and expression can be curbed. This is important to ensure that the courts
are not vandalized or jeopardized. Contempt of Court is punishable under Article 129 and Article 215 of
the Constitution by the Supreme Court and High Courts respectively.

Defamation
Defamation is a criminal offence under Section 499 of IPC. The right to freedom of speech and
expression is not an ultimate license to defame another person and hinder their reputation. Hence, the
right to free speech and expression does not provide anyone with the immunity to tarnish another
person’s reputation in society. If defamation is committed in the form of spoken words, it is called slander,
if the same is committed in a permanent form, written or printed, it is called libel.

In the case of Subramanian Swamy v. Union of India, the validity of Section 499 and Section 502 of IPC
were challenged. While upholding the validity of these provisions, the court stated that to protect the
freedom of speech and expression, the reputation of individuals cannot be “allowed to be sullied. It
asserted that the right to freedom of speech and expression is not absolute and has to follow a social
interest. It also said that the right to reputation is included under the right to life, granted by Article 21 of
the Constitution.

Conclusion
“ To suppress free speech is a double wrong. It violates the right of the speaker, as well as those of the
hearer.”

– Frederick Douglass

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While the right to freedom of speech and expression is sacred to individual autonomy, liberty, and
democracy in the contemporary world, it cannot be absolute and indisputable. With rights come
responsibilities and hence it is the responsibility of the citizens to make judicious use of their rights and
use it for the right reasons. This will help protect the spirit of the right. It has often been questioned as to
how far the right to freedom and expression be allowed and where one needs to draw the line to one’s
liberty. We have heard the principle that one’s right and freedom should not serve as another’s hindrance
and inconvenience. Our right is absolute only until it does not disturb our neighbour. Hence, we can
exercise our right to freedom of speech and expression as long as it is not hateful and defamatory to
another person or it incites violence in the country. Criticism is not just allowed but is welcomed in a
democracy, to strive to qualitatively improve our laws, criticism is necessary. But, this criticism must be
fair and should not act as a double-edged sword that aims to express and create distress in the country.
Due to the nature of this right, some degree of subjectivity will always exist, yet it is hoped that the article
was able to make clear some boundaries of the freedom of speech and expression.

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